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Electoral Reforms: A Detailed Study

The Supreme Court of India, while deliberating on the writ petition filed by the Public Interest Foundation against the Union of India, back in 2011, had directed the Law Commission to analyze the issue of ‘Electoral Reforms’ in its totality and recommend comprehensive measures to bring about changes in the law. Suggestions were asked for on two specific issues: (i) ‘curbing criminalization of politics and needed law reforms’ and; (ii) ‘impact and consequences of candidates filing false affidavits and needed law reforms to check such practice’. Following these directions, the Commission, following a series of discussions, submitted its reports on Electoral Disqualifications in February, 2014 and the final report in March, 2015 titled Electoral Reforms.

The main issues that were dealt with in the final report were Election Finance; Regulation of Political Parties and Inner Party Democracy; Proportional Representation; Anti-defection law in India; Strengthening the office of the Election Commission of India; Paid news and Political Advertisements; Opinion polls and compulsory voting; Election petitions; the ‘None of the above’ (NOTA) option and the right to reject; Totaliser for counting of votes; Restriction on Government sponsored advertisements; Restriction on the number of seats from which a candidate may contest; Independent candidates and; Preparation and use of common electoral rolls.

This article would deal with those issues that were dealt with and analyzed extensively by the Law Commission. Regarding the issue of Election Finance, it was proposed that S. 77 of the Representation of People Act, 1950, that regulates the election expenses incurred or authorized by candidates or their agents be amended to cover the time period from the date of notification of the elections to the date of declaration of results instead of starting from the date of nomination of the candidate. Another recommendation is that a new account be created along with the existing account that manages the election expenses which would disclose particulars of donors (either individual or company, but not a government company) and the amount contributed. Any contribution by the political party from the date of notification of elections, which have to be made by the party by a crossed account payee cheque or draft or bank transfer, should also be mentioned in the account. The district election officer should be required to make publicly available, either on his website or on file for public inspection on payment of prescribed fee, these expenditure reports submitted by the candidates. An amendment to the Companies Act was also suggested, stating that the resolution that authorizes contribution from the company’s fund to a political party should be passed in the Annual General Meeting of the company instead of at a meeting of its Board of Directors.

The report proposes disqualification of a candidate for at least a period of five years instead of three in case of failure to submit any of the election accounts so that he may not be able to appear in the next general assembly elections. Stricter penalties have been suggested in the final report in cases of non-compliance with the disclosure guidelines like a daily fine of Rs. 25000 for each day of non-compliance till a period of 90 days following which the candidate should be de-registered. In cases where a political party accepts funds from impermissible donors, the penalty suggested is five times the amount so accepted. The Law Commission has also suggested the inclusion of a new clause that deals exclusively with Electoral Trusts which would regulate their contribution, disclosure and penalties in case of non-compliance.

Regarding the issue on regulation of political parties and inner party democracy, the commission has recommended that along with the submission of memorandum with the party’s application, the party also submits a kind of bona fide stating that the party would shun violence for political gains and would avoid discrimination based on race, caste, creed, language or place of birth/ residence in any circumstance. Also, it has been proposed that a party should be de-registered if it fails to contest Parliamentary or State elections consecutively for ten years.

The commission seeks to make the office of the Election Commission of India stronger by giving equal constitutional protection to all members of the commission on matters of removability; by making the appointment procedure of Election Commissioners and Chief Election Commissioner more consultative and; by creating a permanent and independent secretariat for the Election Commission of India. Apart from this, the definitions of “paying for news”, “receiving payment for news” and “political advertisement” should be included in the definition clause of the Representation of People Act of 1950. The consequences for those indulging in such acts should also be included in the statute by way of amendments. For instance, by attaching consequences like disqualification or some penalty, it would act as a deterrent to those who have been doing it in the previous elections. In order to check the practice of disguised political advertisement, disclosure provisions should be made obligatory for all forms of media. The purpose of disclosure is twofold; first, to aid the public identify the nature of the content (paid content or editorial content); and second, to keep the track of transactions between the candidates and the media.

Opinion polls are another issue that need consideration because the prohibition on display of any election matter forty-eight hours before polling begins is restricted only to display by means of cinematographic, television or similar apparatus. This should be extended to include the print media as well. The regulation of opinion poll has been deemed necessary so as to ensure that the credentials of the organization conducting the polls is made available to the public, the public gets to know the methods used in conducting the polls and is made aware that such polls are in the nature of mere predictions and hence are likely to be inaccurate. The commission has also stated that compulsory voting is not a feasible option because it is undemocratic, illegitimate, expensive and difficult to implement. Moreover, though the commission has currently refused to include the right to reject in the purview of the None of the Above (NOTA) option but there is scope that the issue might be reconsidered again in the future.

Another very important question that needs deliberation is the question of election petitions and disputes regarding elections. The suggestions that have been given in this regard are:

Introduction of at least one election bench in each High Court which would exercise jurisdiction over all disputes relating to elections;

Making the procedure of filing an election petition simpler and less formalistic and making the trials of such petitions accelerated by conducting daily trials and minimising adjournments;

Setting a time limit of forty-five days for filing of an election petition;

Setting a time limit of six months to conclude the trial or send written reports to the Chief Justice of the concerned High Court and to issue the order within ninety days of conclusion of trial.

If these suggestions are followed in their spirit, then we can expect some noteworthy changes in the electoral scenario in the country that is known as the largest democracy in the world.

About the Author

Soumya Tiwari is pursuing her B.A. LL.B. (Hons.) degree from Dr. Ram Manohar Lohiya National Law University, Lucknow and is currently in her third year. Her areas of interest are substantive criminal law and intellectual property rights law. She has a keen interest in research work and has been adjudged as the best researcher at the 7th edition of GNLU International Moot Court Competition, 2015. In her free time, she loves to read and is passionate about singing. She is currently interning with the Model Governance Foundation.